Evan Katz
Supreme Court Justice Ruth Bader Ginsburg passed away today at age 87. Ginsburg was a vociferous advocate for gender equality and will go down in history as one of the highest court’s most iconic justices. Her death is yet another dark moment in what has been an awful year. There will be plenty of pieces written about her monumental legacy and indelible impact on American politics in the coming days (much more than I could ever write), and I recommend people read them. But I wanted to quickly get my thoughts out about how Ginsburg’s death impacts the immediate future.
Having recently released a list of possible nominees, Donald Trump will most definitely try to force through another justice before his term ends, if not before Election Day. Despite arguing four years ago that a president in an election year should not be allowed to nominate a justice to the Supreme Court, most Republicans will gleefully go along with Trump. Mitch McConnell has said he has no intent of holding Trump to the same ridiculous standard to which he held Barack Obama, vowing to hold a vote on a replacement.
None of this surprises me. The election year bullshit that McConnell pulled with Antonin Scalia was always a partisan ploy to capture a Supreme Court seat, not a genuine attempt to give voters a say in who serves on the court. It was always a sham, and McConnell got away with it; his 2016 gamble has clearly paid dividends. Republicans have not respected institutional norms for some time, treating politics as a tribalistic game in which competing factions attempt to cling to power by rigging the rules to favor their supporters and punish their enemies. But the looming showdown over this vacancy will be the starkest and most egregious example of political hypocrisy in recent American history.
If McConnell manages to succeed in getting not one, not two, but three Republican-appointed justices on the Supreme Court in one presidential term, he’ll have cemented his legacy as one of the most conniving and ruthless political minds of all time. Unfortunately, Democrats have little institutional recourse right now to fight back, so stopping Republicans from filling the vacancy will be difficult without help. If Democrats do manage to take control of the Senate and achieve unified government in November, the party should seriously look into ways to undo the damage Republicans have wrought, from court packing to adding senate seats.
For what it’s worth, both Lisa Murkowski (R-AK) and Susan Collins (R-ME) have stated that they don’t intend to fill the vacancy before the election. Whether they stay true to their word remains to be seen. And even if they do, two additional Republicans would still need to follow suit (looking at you, Mitt Romney and Lindsey Graham), assuming Joe Manchin doesn’t defect like he did for Brett Kavanaugh.
But one thing’s for sure: losing RBG was the last thing we needed as a country. The stakes of this election, which were already sky high, just increased exponentially.
One must remember, while talking about McConnell’s political gamble that RBG was gambling as well. She was asked numerous times while President Obama was in office to please retire so that the seat could be filled, but she refused. She gambled as well. Unfortunately, she lost. While I think I am second to none in my admiration of RBG, I also think it is fair to say she is solely to blame for the situation we now find ourselves in. We also talk about stacking the court after a Biden win. What will happen if, and I think this is likely, Trump wins the election? Will we just sit back with a ‘to the victor goes the spoils’ attitude if HE wants to stack the court? And in your essay you write ‘the looming showdown over this vacancy will be the starkest and most egregious example of political hypocrisy in recent American history’. Did we forget the impeachment hearings so soon? What about the Cavanaugh hearings where the man was accused of horrible acts without a shred of credible evidence? (and boy, did I want the accusations to be true!) I think we need to check our righteous indignation against one party without holding the other to the same standards. Frankly, I think both are a national embarrassment.
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Jon, I won’t speak for Evan, and he wrote the piece so perhaps he’ll weigh in later, but I think you make a very cogent first point. There does seem to be an unwillingness to criticize RBG’s quite unfortunate (and I do think it’s fair to say selfish, from a movement perspective) decision to remain on the court through both of Obama’s terms despite being in conspicuously poor health. I think the inability of many on the left to call out her culpability in this current imbroglio is the result of an unfortunate personality cult that has effectively beatified her and thus placed her beyond reproach. This is not to criticize her jurisprudence or broader legal/political impact but rather to note and condemn a tendency increasingly prominent in American politics to overstate friendly politicians’ moral unassailability (Reagan, Obama, RBG) by whitewashing their record (for example, Ginsburg’s comments on Kaepernick).
All that said, I do think there is a qualitative difference between the examples of alleged hypocrisy you cite and this particular case simply because McConnell explicitly invented a Senate norm out of thin air that he then himself violated only four years later. In other words, it’s not the political gamesmanship or indecorous verbiage that’s so appalling in this case but rather the fact that McConnell invented a rule to hamstring Obama that he then broke to empower Trump. There will always be maneuvering and hypocrisy – it’s politics, and you are absolutely right that both sides are guilty. But this strikes me as qualitatively different from an aggressive hearing or a politicized impeachment based on credible evidence of misconduct (and seriously, can you even imagine a non-political, totally impartial impeachment, ever?). Indeed, had McConnell simply said back in 2016, “you don’t have the votes,” that would have been better. But by creating a new convention, he changed the rules of the game, and for the game to be fair rules have to be impartially applied. That’s the only way you can have a loyal opposition. And so by operating under explicitly false pretenses he damaged Senate decorum and thus the institution itself. By way of illustration, there is nothing legally stopping the majority party from expanding the Supreme Court, but political conventions and norms constrain the majority in this regard. By flagrantly disregarding these kinds of normative barriers, McConnell is damaging our political system in a way that the cases you cite do not and inviting an in-kind retaliation.
Finally, regarding the point about court stacking, I think your immediate worry is overstated. What incentive would the GOP have to stack the court when they already have a 6-3 majority? Republicans have the high court where they want it, and so breaking the norm of nine justices would only hurt them politically and make it that much easier for Democrats to justify doing the same when they have power. So why take the reputational bullet for the Democrats when they can just sit back and force their political rivals to have to take the blame if they try to expand the size of the court under a later Democratic administration. But of course in the long term you’re probably correct – this tit for tat will escalate. It seems to me, though, that unilateral disarmament is not tenable for the Democrats. It’ll anger their base and significantly hamstring their ability to legislate. What McConnell did was clearly a naked abuse of majoritarian power to selectively limit one party’s ability to influence the court. It seems hard to justify not retaliating when given the chance. After all, in iterated games, defection requires punishment if it’s to be deterred. The trick is to figure out how to avoid an escalatory cycle. Sadly, I don’t have an answer for that.
Anyway, just my unsolicited views on your interesting and much appreciated comment.
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Jon, thanks for your comment. To echo Sam, I think there’s definitely a difference between this situation and impeachment/Kavanaugh. While neither side is righteous here, Republicans have generally been more willing to disregard norms for partisan advantage, which has contributed to the decay of our political institutions. McConnell created an arbitrary and self-serving rule only to deliberately violate it when the shoe was on the other foot.
I also think that the progressive frustration with RBG for choosing not to retire before 2014 is misplaced, and I definitely disagree that she’s “solely to blame for the situation we now find ourselves in.” Yes, she could have retired and paved the way for a younger, progressive justice to reside on the bench for decades. But that misses the point; it’s not like RBG could have predicted the political landscape years into the future or that someone like Donald Trump would occupy the White House. Her choosing to remain on the bench was not out of the ordinary, as plenty of justices have served well into their 80s (she lived for almost 6 full years after the 2014 midterms). Additionally, because the filibuster on judicial nominations was still in place at the time, Republicans probably would have filibustered a nominee as liberal as RBG, so it’s more likely Obama would have appointed a moderate in the mold of Kagan or Garland to avoid a rancorous fight.
Ultimately, the better critique is of lifetime appointments, which lead to unpredictably timed vacancies and allow for politically motivated retirements. Don’t blame RBG, blame the system. That’s why I’ve come around on judicial term limits, even though they’d be extremely difficult to implement in practice.
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A cogent and well-written piece demonstrating the hubris and hypocrisy of McConell’s position and illustrating the continued erosion of standards and norms of the American polity by those entrusted to safeguard and uphold them. McConnell’s unabashed use of pretzel logic to justify his currently convenient position is tortured at best and an abject abuse of power. When standards and norms are respected and observed only when politically expedient, one can convincingly argue that they have effectively ceased to matter or even exist.
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